House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Tertiary Education, Skills, Science and Research, Senator the Honourable Chris Evans)

NOTES ON CLAUSES

Clause 1 - Short title

Provides for the Act to be cited as the Higher Education Support Amendment (Streamlining and Other Measures) Act 2012 .

Clause 2 - Commencement

Subclause 2(1) inserts a three column table setting out commencement information for various provisions in the Act. Each provision of the Act specified in column 1 of the table commences (or is taken to have commenced) in accordance with column 2 of the table and any other statement in column 2 has effect according to its terms.

The table has the effect of providing for:

•

sections 1 to 3 and anything in this Act not elsewhere covered by this table to commence on Royal Assent;

•

Schedules 1, 3 and 4 commence on proclamation; and

•

Schedule 2 the day after this Act receives the Royal Assent.

Subclause 2(2) provides that column 3 of the table is for additional information which may be added to or edited in any published version of the Act but that information is not part of the Act.

Clause 3 - Schedule(s)

Provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule and that any other item in a Schedule has effect according to its terms.

Schedule 1 - COAG amendments

Part 1 - Kinds of VET providers

Division 1 - Amendments

Approval of specified kinds of bodies as VET provider

Summary

This amendment seeks to remove barriers to participation in the VET FEE-HELP Scheme and to increase take-up of VET FEE-HELP by quality registered training organisations (RTOs) and students.

Explanation of the changes

Item 4 makes amendments to provide that the Minister may determine, in writing, a kind of body for the purposes of approving an applicant as a VET provider. The amendment allows the Minister to specify a kind of body, under a separate set of requirements from clause 6(1) of Schedule 1A to the Act, for approval. The amendment will also enable the Minister to specify different approval requirements where those providers present a low risk to the Government.

Item 14 modifies the current requirement under clause 16 of Schedule 1A so that the Minister must have regard to any financial statement provided by the provider under clause 15 when determining whether a provider is financially viable and likely to remain so. The financial material which the Minister must have regard to includes any financial information a provider is required to submit to the Minister in response to a notice under clause 24. This amendment allows the Minister to consider relevant and timely financial information when making decisions.

Item 15 repeals subclause 17(3) of Schedule 1A to remove the Minister's ability to specify, in the VET Guidelines (as amended by Item 42 of Schedule 3 ), differential requirement to be met by different classes of VET providers for the purpose of determining whether a VET provider has met an appropriate level of quality for a VET provider.

This provision is repealed as it is consequential to the arrangements to be established under by Item 4 and will have no effect on determining the level of quality that all providers must meet. Quality arrangements are currently provided for under subclause 17(2) of Schedule 1A.

Item 16 amends subclause 25(2)(a) to require approved providers to continue to notify the Minister in writing of any events that may significantly affect their ability to meet the conditions of subclause 6(1). Item 17 inserts subclause 25(2)(aa) and is consequential to new subclause 6(1A) to require approved providers to continue to notify the Minister in writing of any events that may significantly affect their ability to meet the conditions of subclause 6(1A).

Items 1, 2, 3, 5 to 13 (inclusive) 18 and 19 make technical amendments for the purposes of Item 4 .

Division 2 - Application and transitional

Division 2 sets out the application and transitional arrangements that shall apply to the amendments made by Division 1 of Part 1 of Schedule 1.

Item 20 provides that all amendments made by Division 1 of Part 1 of Schedule 1, excluding Item 14, 18 and 19 , shall only apply in relation to applications for approval as a VET provider made on or after the commencement of Item 20 .

Item 21 provides that the amendments made by Item 14 shall apply in relation to financial statements or financial information provided any time before, on or after the commencement of Item 21 .

Item 22 provides that the amendments made by Items 18 and 19 shall apply in relation to a VET provider approved before, on or after the commencement of Item 22 .

Item 23 provides that the Minister may approve a body corporate under proposed subclause 6(1A) of Schedule 1A if the body applied for approval before commencement of Item 23 and at the time of deciding the application, the body is of a kind specified in the VET Guidelines for the purposes of paragraph 6(1A)(a). Under this provision, if the Minister approves the body under subclause 6(1A), the Minister must not approve the body under subclause 6(1).

Item 24 authorises a body corporate to be treated and dealt with as a body approved under subclause 6(1A) of Schedule 1A if, immediately before commencement of Item 24 , the body corporate was a VET provider and immediately after commencement of Item 24 the body is of a kind specified in the VET Guidelines for the purposes of paragraph 6(1A)(a). The purpose of Item 24 is to allow the Minister to implement alternate reporting and compliance arrangements for low risk providers.

Part 2 - VET qualifications

Division 1 - Amendments

Higher Education Support Act 2003

VET course of study

Summary

These provisions amend the definition of VET course of study to expand the Minister's powers to determine the course qualifications applicable for VET FEE-HELP. The Minister's powers are amended to determine a course of study, type of course of study and also kind of provider which may or may not offer a specified course of study. The purpose of this amendment is give effect to the 2012 COAG National Partnership Agreement on Skills Reform and to allow a managed trial of certificate IV qualifications under VET FEE-HELP. Under this trial, the Minister may limit the certificate IV courses that are eligible for VET FEE-HELP assistance and the providers who are able to offer courses.

Explanation of the changes

Item 26 repeals and substitutes subclause 45(2) of Schedule 1A to allow the Minister to limit or expand eligibility of courses under VET FEE-HELP. Under this amendment, the VET Guidelines will provide that a specified course or specified kind of course provided by a specified VET provider, or by a specified kind of VET provider, is a course for which

VET FEE-HELP assistance is not available. The VET Guidelines may limit the courses eligible for VET FEE-HELP assistance by specifying that courses provided by a specified VET provider, or a specified kind of VET provider, are courses in relation to which VET FEE-HELP assistance is unavailable.

Item 29 repeals subclause 45(4) of Schedule 1A to remove the prohibition on the Minister making a determination under subclause 45(2) (as inserted by Item 26 ) within 6 months of a day on which students were able to commence a specified course or course with a provider. This provision is repealed to provide the Minister with the flexibility to respond to student and industry needs.

Item 32 inserts a definition for the new term, VET qualification , under subclause 1(1) of Schedule 1. Under this amendment, VET qualification is defined to mean a VET diploma, VET advanced diploma, VET graduate diploma, VET graduate certificate, or a qualification specified by the *VET Guidelines.

Items 25, 27 and 28 make technical amendments for the purposes of Item 26 .

Item 30 and 31 make technical amendments for the purposes of Item 32 .

Division 2 - Application

Division 2 sets out the application provision that shall apply to the amendments made by Division 1 of Part 2 of Schedule 1.

Item 33 provides that the amendments made by Division 1 apply in relation to a VET unit of study commenced by a student on or after commencement of this item.

Schedule 2 - Approval and revocation of approval

Part 1 - Date of effect of revocation of approval

Division 1 - Amendments

Approval and revocation of approval

Summary

Presently, the provisions under the Act in relation to the notice of revocation enable significant time delays to occur between the day of the instrument's registration and the date of commencement. The reason for the delay is that currently, a decision of the Minister to revoke the approval of a higher education or VET provider takes effect on the day following the last day on which a notice of motion to disallow the instrument can be moved in either House of Parliament. Given the variations in the Parliamentary sittings, a significant delay can occur before the revocation commences. The purpose of this amendment is to ensure that notices of revocation take effect in a more timely and effective manner to prevent an organisation from continuing to offer FEE-HELP or VET FEE-HELP to students during the period between the Minister's decision to revoke a provider's approval and the time when the notice of revocation of approval takes effect. This will minimise risks to students.

Explanation of the changes

Items 1 and 9 , respectively, repeal the existing provisions and substitute paragraph 22-1(1)(a) and subclause 29(a) of Schedule 1A to make it clear that a body ceases to be approved as a higher education provider or VET provider when a decision to revoke the body's approval is in effect under subdivisions 22-B or 22-D, or subdivision 5-B or 5-D of Schedule 1A. The amendment is intended to improve the clarity and transparency of the current provisions by specifying when the decision to revoke takes effect.

Items 2 and 10 , respectively, repeal and substitute paragraph 22-20(3)(c) and paragraph 34(3)(c) of Schedule 1A to provide that, in notifying the body of the decision to revoke the body's approval, the Minister must specify in the notice that the revocation takes effect on the day that the notice is registered on the Federal Register of Legislative Instruments. The purpose of this amendment is to ensure that notices of revocation take effect in a more timely and effective manner. The amendment will also enable the Minister to clearly provide notice to the provider of the day that the revocation takes effect.

Items 3 and 11 inserts that a notice of revocation is a legislative instrument after subsection 22-20(3) and subclause 34(3) respectively.

Items 4 and 12 , repeal and substitute subsection 22-20(5) and subclause 34(5) of Schedule 1A respectively to provide that the day on which a decision of the Minister to revoke the approval of a higher education provider or VET provider takes effect, is the day on which the notice of the Minister's decision to revoke the body's approval under subsection 3 or subclause 3 is registered on the Federal Register of Legislative Instruments.

Items 8 and 16 , insert new section 22-50 at the end of Part 2-1 and new clause 39B at the end of Part 1 of Schedule 1A respectively.

These new provisions explain the effect of a notice of revocation ceasing to have effect under the Legislative Instruments Act 2003 . These amendments make clear that the provisions of new section 22-50 and clause 39B will apply if, a decision of the Minister to revoke the approval of a higher education provider or VET provider has taken effect and, the decision to revoke the approval then ceases to have effect under Part 5 of the Legislative Instruments Act 2003 .

Subsection 22-50(2) and subclauses 39B(2) clarify that the cessation of a decision to revoke will not:

(i)

affect the operation of the Act, or any instrument made under the Act, in relation to the body before the cessation; or

(ii)

affect anything duly done or suffered in relation to the body before the cessation; or

(iii)

affect any right, privilege, obligation or liability acquired, accrued or incurred before the cessation; or

(iv)

affect any penalty, forfeiture or punishment incurred in respect of the body having been a higher education provider; or

(v)

affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Item 17 inserts a new definition for the term Federal Register of Legislative Instruments , under subclause 1(1) of Schedule 1. Under this amendment, Federal Register of Legislative Instruments is defined to mean the Federal Register of Legislative Instruments established under the Legislative Instruments Act 2003 .

Items 5, 6, 7 and 13, 14, 15 make technical amendments for the purposes of items 4 and 12 respectively .

Division 2 - Application

Item 18 is an application provision which provides that the amendments made by Division 1 of Part 1 of Schedule 2 shall only apply in relation to decisions to revoke an approval of a higher education provider or VET provider made on or after commencement of this item.

Part 2 - Approval and revocation of approval

Division 1 - Amendments

Information sharing: national regulators

Summary

These amendments allow the Minister to seek information from the Tertiary Education Quality and Standards Agency (TEQSA) or the National Vocational Education and Training Regulator or the relevant regulators from non-referring jurisdictions (VET regulator) to improve decision making for application, administrative compliance, suspension and revocation purposes for FEE-HELP or VET FEE-HELP.

These amendments will improve information sharing and transparency with the regulators and will enhance arrangements to identify low quality providers.

Explanation of the changes

Item 19 inserts paragraph 16-25(1)(fa) to require all bodies seeking approval as a higher education provider to comply with any requirements set out in the Higher Education Provider Guidelines. The purpose of this amendment is to make the corresponding provisions consistent between VET FEE-HELP and FEE-HELP.

Item 20 makes technical amendments for the purposes of Item 21 .

Item 21 inserts new section 16-43 to allow the Minister to seek information from the relevant VET regulator for the purposes approving a body corporate as a higher education provider under FEE-HELP.

Item 22 repeals and substitutes section 22-22. Under this amendment, the Minister may seek information from TEQSA for the purposes of determining whether to revoke or suspend a body's approval as a higher education provider. It also inserts a counterpart provision section 22-23, allowing the Minister to seek information from the relevant VET regulator for the purpose of determining whether to revoke or suspend a body's approval as a higher education provider.

Items 23 and 24 make amendments to provide that the Minister may seek information from the relevant VET Regulator or TEQSA for the purposes of approving a body as a VET provider.

Item 25 repeals and substitutes clause 34A of Schedule 1A to authorise the Minister to seek information from the relevant VET Regulator for the purpose of determining whether to revoke or suspend a body's approval as a VET provider (under new clause 34A). Also inserted is new clause 34B to allow the Minister to seek information from TEQSA for the purpose of determining whether to revoke or suspend a body's approval as a VET provider.

Division 2 - Application

Division 2 sets out the application provisions that shall apply to the amendments made by Division 1 of Part 2 of Schedule 2.

Item 26 provides that the amendments made by Items 20 and 21 (in relation to allowing the Minister to seek information from a relevant VET regulator for the purposes of approving a body as a higher education provider) shall apply in relation to applications for approval as a higher education provider made before, on or after this item commences.

Item 27 provides that the amendments made by Item 22 (in relation to allowing the Minister to seek information from TEQSA for the purpose of determining whether to revoke or suspend an approval as a higher education provider) shall apply in relation to decisions to revoke or suspend an approval of a higher education provider made before, on or after this item commences.

Item 28 provides that the amendments made by Items 23 and 24 (in relation to allowing the Minister to seek information from TEQSA for the purposes of approving a body as a VET provider) shall apply in relation to applications for approval as a VET provider made before, on or after this item commences.

Item 29 provides that amendments made by Item 25 (in relation to allowing the Minister to seek information from TEQSA for the purpose of determining whether to revoke or suspend an approval as a VET provider) shall apply in relation to decisions to revoke or suspend the approval of a VET provider made before, on or after this item commences.

Schedule 3 - VET Guidelines

Part 1 - Amendments

VET Guidelines: consolidation of separate guidelines

Summary

Currently subclause 99(1) of Schedule 1A to the Act allows the Minister to make, by legislative instrument, the following Guidelines:

•

VET Provider Guidelines;

•

VET FEE-HELP Guidelines;

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VET Tuition Fee Guidelines; and

•

VET Administration Guidelines.

As presently drafted, subclause 99(1) operates in a way that prohibits all matters dealt with regarding VET FEE-HELP from being covered in one set of Guidelines. This restricts the streamlining of the subordinate legislation made for the purposes of Schedule 1A and results in duplication of requirements. Under this amendment, the four separate Guidelines will be consolidated within one instrument - the 'VET Guidelines'. This streamlining measure will improve the accessibility, clarity and transparency of the obligations of approved providers.

Explanation of the changes

Item 11 amends subclause 17(2) of Schedule 1A. Currently subclause 17(2) provides that the Minister must be satisfied that a VET provider meets the requirements set out, or referred to, in the VET Guidelines (as amended by Item 42 of this Schedule). Under this amendment, the reference to 'requirements' will specify that the requirements must relate to quality to ensure that clause 17 is consistent with the approach of other provisions in relation to specifying that nature of the requirements which providers must comply with.

Item 42 amends subclause 99(1) of Schedule 1A to allow the Minister to consolidate the exiting guidelines namely the VET Provider Guidelines, the VET FEE-HELP Guidelines, the VET Tuition Fee Guidelines, and the VET Administration Guidelines into one set of guidelines i.e. the VET Guidelines . Under this amendment, the Minister's legislative instrument making power is restricted to one set of guidelines.

Item 47 inserts a new definition for the term, VET Guidelines , under subclause 1(1) of Schedule 1. Under this amendment, the VET Guidelines is defined to mean the guidelines made under clause 99 of Schedule 1A.

Items 1 to 10 (inclusive ), 12 to 41 (inclusive ), 43 to 46 (inclusive) and 48, 49 make technical amendments for the purposes of Item 42 .

Part 2 - Application and transitional

Part 2 sets out the application and transitional arrangements that shall apply to the amendments made by Part 1 of this Schedule 5.

Sub-item 50(a ) provides that, for the purposes of making a decision on an application for approval as a VET provider under clause 6 of Schedule 1A, the amendments made by Part 1 of Schedule 5 shall only apply in relation to applications for approval made on or after the commencement of this item.

Sub-item 50(b ) provides that, for all other cases (not covered by sub-item 50(a )), the amendments made by Part 1 of Schedule 5 shall apply to a VET provider approved before, on or after the commencement of this item.

Schedule 4 - Other amendments

Miscellaneous streamlining provisions

Summary

The first amendment made by Schedule 4 moves the census date requirements to the Administration Guidelines for FEE-HELP and the VET Guidelines for VET FEE-HELP. The intent of this amendment is to enable the tertiary sector to deliver qualifications with greater flexibility. Moving the specific date requirement for census dates to the guidelines will enable approved providers to have greater flexibility to offer courses, meet student and industry needs, and minimise the administrative burden associated in meeting this obligation.

Schedule 4 will also amend the Ministerial and Secretarial powers of delegation to Australian Public Service (APS) employees. This will remove the current restriction that the delegation must be made to an APS employee of the Department. These arrangements will support the Department's day-to-day business operations during unforeseen situations like machinery of government changes and changes to Administrative Arrangement Orders. This amendment will enable the Government to minimise disruption to program administration and more efficiently and effectively manage programs where funding is administered by different Government departments.

Explanation of the changes

Items 1 and 4 remove the current restriction under subsection 169-25(2) and subclause 67(2) of Schedule 1A respectively, that a census date must not occur less than 20 per cent of the way through the period during which the unit is undertaken. Under this amendment, a census date must be determined in accordance with the Administration Guidelines under FEE-HELP in relation to each unit of study, and in accordance with the VET Guidelines under VET FEE-HELP in relation to each VET unit of study.

Items 2, 3 and 5 amend subsection 238-1(1), paragraph 238-5(1)(b) and subclause 98(1) of Schedule 1A to omit the words, 'in the Department' to remove the requirement that a delegation made by the Minister or Secretary must be to an APS employee of the relevant Department.

This amendment does not in any way alter existing arrangements in relation to Ministerial and Secretarial delegations, but provides that, during unforeseen situations like machinery of government changes and changes to Administrative Arrangement Orders, the business of all departments that administer funding or programs under the Act can continue. The existing arrangements in relation to the level of delegation will remain at high level managerial staff of the APS.